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.

~T~~EA~TORNENGENERAL

OF TEXAS

September 20, 1949

Honorable L. P. Sturgeon,Director Foundation School ProgramAct Mvlrlon State Auditor's Cfflce Austin, Texas Optnlon Ho. V-910

Re: Transfer of scholastics between Texas and other states as affectingaverage dally attendance for allocationof clarrroom teacher units under Art. III, S.B. 116, Acts 51rt Leg., R.S., 1949i

Dear Sir:

Your request for an opinion relate8 to tranufer of scholasticsbetween Texas and other states as affectingaverage dally attendanceupon which to allot classroom teacher unlta as provided In S.B. 116, Acts 5;$" Leg., R.S., 1949. We quote the quertlona 8ubm%t- :

"Is there a legal method nhereby schelaatlcs may be transferredSrom the census rolls of one State to ahother? If not, la there a legal method by which the average dally attendanceestablishedby these chlldren may be counted In determiningeliglbllity.for claumoom teacher units?"
Section 1 of ArticleVII of the Constitution of Texas reads In part:

" ..* It shall be the duty of the Legislatureof the State to establishand make suitableprovision for the support and malntenance of an effecient system of public free 8choo1a1."

Under this provision It la the mandatoryduty of the Legislatureto makes suitableprovision Sor the .Hon. L. P.Sturgeon,Page 2 (V-910)

support and maintenanceof public free schools. The 'legislative

determination

of-the methode, restrictions, and limitations

necessary to make the mandate effective Is exclusiveand final unless violative of the Copstltutlon. Jlumme v. Marrs, 120 Tex, 383, 40 S.W. 24 31 (1931).

tlon Section 3 of ArticleVII of the Conatltuof Texas provides:
"

. . . and all school districtsmay embrace parts of two or more counties,and the Legislatureshall be authorlzed.to pass laws for the assessmentand collectionof taxes ln all said districtsand for the management and control of the public school or schools of such districts..,."

The property and funds of the public schools
are held In trust by the district to be used for the benefit of the school children of the communltvor dlstrlct In which the propertlesexist, or to which the school funds have been all allocated. In Love v. CIQ of Dallas, 120 Tex. 351, 40 S.W.28 20 (19311, it was said at page 27:

"Since the Constitution, Art. 7, Sec. 3, contemplates

that districts shall be organized and taxes levied for the educationof scholastics

within the dlstrlct, it Is obvious that the education of non-residentscholaat!ce la not within their ordinary functions.

. .. If authority for transfer of scholasticsto the census rolls of Texas from another state exists,we think It must of necessity exist by virtue of enactments of the Legislaturespecifically providing therefor, The Legislature

has passed a number of laws relating to transfer of scholasticsfrom one district to another under certain described clrcumstancea. These statutesare Articles 2678a, 2681, 2695-2699,and 2904a, V,C.S. These statutes prescribeno procedureand provide no authority for transfer of scholastics between Texas and other states. We think the statutes clearly-contemplate transfersbetween districtsin one or more countieswithin the State of Texas.,

.

Hon. L. P. Sturgeon, Page 3 (V-910)

In 1931 the Legislatureenacted a law authorizing the Governor to appoint a Comlasloner to negotiate a compact, subject to approval of the Legislature, for the formationof state line school districtswith New Mexico. Acts 42nd Iag., R.S., ch, 251, p. 418. Pursuant to this Act, the Commissioner was appointed and negotlateda compact which was approved and ratlfled. Acts 44th Leg,, R,S., 1935, ch. 220, P* 516. The court, In the case cited below, in consideringthe valldlty of the compact, said:
,

"Nowheredoes the Texas Constitutionauthorize the State Legislatureto fona or create school districts embracingparts of two
or more statee.,.,"

and held the compact invalid. The court recognized the maxim Ek~resslo unlua est excluslo alterlua (the lxpreealon of one thing is exclusiveof another l p lied In Parks v. West, 102 Tex. 11, lll.S.W. 726 lgo!), stating that this rule of y&y~lon has long been follolmd ;z the Texas eourtao e Nexlco School Dlatrlct 1 vr Fxwe& IndenendentSchool Dlbtrlct, 1@4 S W 26 b42 (T APP,, 1944) Ye think this rule ip: plies to the queitlons submltied, The LeglalatUranot having provided for transfer of scholastlcsbetween Texas and other states, It follows that transfersmey not be legallymade.

Further,we think the general census statutes, Articles 2816-2822, V.C,S., clearly contemplatecensus rolls containingthe names of resldentsof the respective districtswithin the State of Texas.

Article 2816, V,C,S,, provides In part:
"

. . . the census trustee .-* shall take
a census of all the children 1-O who are resldents of the school district..,," Manifestly,a scholastic,In order to be lneluded In the census,must be a resident of some school district in Texas. In Love v. Cltr ef Dallas, supra, the court said at page 23:

"It is clear, we think, from a conslderatlon of the various transfer statutes ..* that scholasticscannot be transferredunder .Iion, L. P. Sturgeon, Page 4 (V-910)

any circumstances, from the district in which they reside to another district,except under the transfer statutes,"

There Is no provision for transferof scholastics to or from the census rolls of Texas fran or to the rolls of another state.

However,Article 26gga, V,C,S., reads In part:
"Any child who would be entitled to attend the public school of any district that lies on the border of Louisiana,Arkansaa, Oklahomaand New Mexico, and who may find It more convenientto attend the public school In a district of a County of said State contiguousto said dlatrlct In Texas, may have the State and County per capita apportionmentof the Available School Fund paid to said district in aald State and may have additionaltuition, If necessary, paid by the district of his residenceon such terms as may be agreed upon between the trusteesof the receivingdistrict and the trustees of the district of realdenceof such child,,,,"

This statute provides a method by which a resident scholasticof Texas may attend school In a district of a county of another state contiguousto the district of residenceand have per capita and tultlon paid to the receivingdistrict,but doers not authorize the Comptrollerto draw warrants in distribution of the State*8Available School Pound payable to school districts of other states contiguousto Texas, Attorney Generalus Opinion NoJo, O-5805* The statute contemplatesan agreementbetween the Texas district and the contiguousout-of-state district under which the Texas district pays the amount (Including, but not limited to, per capita apportionment received from the State and county) agreed upon to the out-of-state.dlatrlct. Attorney General's Opinion No, 0-6332,

It appears that Article 26gga, supra, provides the only method by which a Texas scholasticleay attend an out-of-stateschool, Specificprovision Is not made for out-of-state pupils to attend Texas schools. In Love v, City of Dallas, supra, It wasHon. L. P. Sturgeon, Page 5 (V-910)

observed that the LegislatureIs without power to requlpe school districts to receive non-residentscholaetics without just compensation, Non-residentsthere referred to were residimtsof Texas.. Undoubtedlythe rule applies with peculiar force to non-reside&r of Texas. However, it waa p6lnted out that:

”0.. In vlew of the long operationof the transfer statutes,we believe that w@re a school district has facilitiesand teachers in excesrs

of those necessary for its
own scholastica,the atate haa the power $0 require it, to accept transfersfroa another district,but only upon the payment of reasonable compensationtherefor....”

We conclude that scholaatlcs may not be transferred to or from the cenmm rolls of Texas from or to those of other etatea rime such pupil8 do not come rithin the general transfer statutes.

Admission to Texas schools on the same basis upon nhich Texas scholastics may attend schools of adjoining states as provided in Art. 2699a, mpra, is a matter addressing itself to the dircretionOS local boards involved; It Is pur opinion that ii they are admitted, just coapensation must be 9;rld;d y ;he outprtate dirtrict of reMdance. 

### g? l ll4n, rupra, it wae said at page 30: e e Ia

‘.** a round discretion is left to the loarl rchool board8 to determineuhether ..* the adlnisrion

of noti-resident

schelastics will be prejudicialto the acholasticao? their districtsand uhether e0e the statutory See uould be compenratoryO.O oontrol of our publlo mhooll ha8 8lwayr been tested in local bo@rdr +.* dimration to be exercired by the local boards will not be disturbedby the courta, except in CaueLI OS manifest 8bu8e.’

As MLI already been pointed out, the court in this case was consideringecholastics who were reeldents of Texas; but we think, eonaidering pertipent mtatutes, that local boards have similarpouer to exclude.or edmU non-resident.8 o? Texas,Hon. L. P. Sturgeon, Page 6 (v-910)

.

We do not consider the rule exnreeslounlua, supra, applicableto deny district8 the right to receive pupils from adjoining states under Art. 2699, aupra,~a8 Its application*ouXd not aaalat in detersifir lngand giving effect to leglalatlV8%ntente 39 'lb& Jur. 190, Statutes, Sec. 100, and caaas there cite&

Seatlon 5 of ArticleVfT of the Constitution of Texas reads In part:

v,.,, the available soho fund ln provided shall be distributedto several countiesaccording to their astlc population,.,." hem thaacholArticle 2665, V,c.S., provides for apportlm ment of the Fund pursuant to the Csnnstitutlon and cotalns much of the language of Section 5 of Articlem.

Thus It la apparent that per capita apportion- ;rAy not be paid districts for acholaatlceraSl&- lng In other states and attending schools ln 'paras. Proper charge, therefore, sufficientto cover the coat of Instruction

must be made by the Texas dlatrictr
Since the coat OS Instruction muat be pxwr!oviddl by the sendingdistrict,we conclude aeholasticafmD other states attendingTexas aahoola ahbuld not, %nd could not legally,be counted in eatabllshlng 8-w dally attendance for determlnlngallocatloti of ctiaar0ala teacher units* Flowever, we think average dally attendance establishedby Texas scholaStica attending i3cho@~b of other states may be taken into account in allocating classroom teacher units to the dlatricrt of residence.

This conclusionis reached as a necssaary inference from the intent of the Oilmer-Aikln Acts and Article 26gga, V,C.S, The latter statute provides that any child residing In a district adjoininganother state who finds it more convenientto attend school In a dlatrict of a county of the adjoining state contiguousto the Texas dlatrictmay do so and have his proportionate share of State and county available funds, plus neceasary tuition,paid to the out-of-state districtby the dlatr2ct of rasldence. The Texas districthaa the responsibility

of eduaatlng the child and average daily attendanceestablishedby each child residing In the district should be consideredby the State Commlasloner of Eduaatlon in determiningthe total funda neceaeary to provide a foundationschool program In theHan, L. P. Sturgeon, Page 7 (v-910)

district, regardlessof where such child actually attends school. Otherwise,the amount of foundation school funds for which the district la eligiblewould be reduced and the district financially penalleed. Similarly,average dally attendanceestablishedby a child attending school In an out-of-statedistrict should be counted in allocatingclassroom teacher unit8 to the district in order to provide adequate teachers Sor any out-of-statestudents that may attend schools of the district where the coat of instructionla paid to the district by the out-of-state district of realdence.

Power of the Legislatureto provide by general law for transfer of scholasticsto or from Texas froin or to districtsof other states contiguousto Texas districtsand count average dally attendance establishedby such transferees attendingTexas public schools is not before us for determination and we express no opinion with regard thereto.,

Scholastics

may not be transferredbetween Texas and other 8tate8, and average dally attendanceestablishedby non-resident pupils In attendanceat Texas public schools: may not be considered in determiningallocation of classroom teacher units, but average dally attendanceestablishedby Texas acholaatlca attending schools of other states msy be counted in allocatingclassroom teacher units to the district of residence. (ConstruingArts, 2695-26gga,and related atatutea and provlalonaof the Constitutionof Texas as affectingapplicationof Subsection (1) of Section 1, Art. III, SOB, 116, Acts Slot Leg., R,S., 19490)
Very truly yours

APPROVED:

e*FIRST ASSISTANT ATTORNEY GENERAL ATTORNRY GENERAL OFTEXAS

*y/-d*LL Everett Hutchinson

Assistant

EH:db